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The Military Aspects of the UN Law of the Sea Convention

Published online by Cambridge University Press:  21 May 2009

R.W.G. de Muralt
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Extract

On 10 December 1982, 117 States signed the Convention on the Law of the Sea and about forty signatures were later added to this impressive number. However, one should not conclude from this that the Convention will come into force soon, for that would require 60 ratifications. It is certain that the industrialized nations are hesitating as many of them have difficulties with the mining regime for the deep sea-bed, provision for which was made in the Convention. Among those who have not yet signed are the Federal Republic of Germany, the United Kingdom and the United States of America. The Netherlands have signed but explicitly stated that a later decision is required whether or not they will also have to ratify the Convention. All attention was understandably focussed on the deep seabed mining regime which should not make one forget that this was only one of the many features of the Convention. With reference to other provisions in the Convention, some of which would appear to be rather important, there is no difference of opinion. When one takes a cursory look at the 320-articles therein, some subjects seem to merit special attention: the territorial sea, the exclusive economic zone, fishing, the continental shelf, the high seas, the control of pollution of the marine environment, marine scientific research and the settlement of disputes.

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Articles
Information
Netherlands International Law Review , Volume 32 , Issue 1 , May 1985 , pp. 78 - 99
Copyright
Copyright © T.M.C. Asser Press 1985

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References

1. “The Law of the Sea, Official Text of the United Nations Convention on the Law of the Sea with Annexes and Index; Final Act of the Third United Nations Conference on the Law of the Sea; Introductory Material on the Convention and the Conference” United Nations, New York, 1983Google Scholar.

2. Letter by the Minister of Foreign Affairs to the Chairman of the Second Chamber of the States-General, Session 1982–1983, 17824 No. 1, page 4.

3. Adopted 17/12/70 (2749 (XXV)) published at source in next note.

4. Text annexed to Resolution 2660 (XXV) of the General Assembly of the United Nations (p. 230–233 of “Vijfentwintigste Zitting van de Algemene Vergadering der Verenigde Naties”, Publication by the Ministry of Foreign Affairs, The Hague, No, 98).

5. Third United Nations Conference on the Law of the Sea, Official Records, Volume V, p. 54–68 (This source to be further referred to as follows: “Off. Rcrds V 54–68). Soviet intervention p. 58–59 (see § 38); US intervention on p. 62, § 80–81. Discussion on this debate in “La démilitarisation des fonds marins” by Merciai, P. in Revue Générate de Droit International Public, 1984 No. 1, p. 99Google Scholar (This source further to be referred to “Merciai”).

6. Darman, Richard G., “The Law of the Sea Rethinking US Interests”, 56 Foreign Affairs (1977–1978) pp. 373–95CrossRefGoogle Scholar; Richardson, Elliot L., “Power, Mobility and the Law of the Sea” 58 Foreign Affairs (1979–80) pp. 902–919CrossRefGoogle Scholar.

7. Reisman, W. Michael, “The Regime of Straits and National Security: An appraisal of International Law making” 74 AJIL (1980) pp. 48–76Google Scholar; Moore, John Norton, “The Regime of Straits and the Third United Nations Conference on the Law of the Sea” 74 AJIL (1980) pp. 77–121Google Scholar. On the motives that led to this discussion, Moore made a remark in a footnote on p. 78.

8. Both superpowers were in agreement in 1970, when they approved draft articles on straits (see the Report on the XXVth Session of the UN General Assembly published by the Netherlands Ministry of Foreign Affairs, Publication No. 98, p. 56 (In further notes these publications will be referred to as FA-Publications No. …))

9. A definition of naval diplomacy can be found in Booth's, Kenneth, “The Military Implications of the Changing Law of the Sea” in: Proceedings of the Law of the Sea Institute, Twelfth Annual Conference 1978, Ganble, J. K. Jr Ed. (1979) p. 357Google Scholar.

10. Bernard H. Oxman, “The Third United Nations Conference on the Law of the Sea: The Tenth Session”.

11. Yearbook of the Netherlands Ministry of Foreign Affairs 1967–68 p. 185.

12. Extavour, W.C., The Exclusive Economic Zone (Sijthoff) p. 165Google Scholar; FA-Publication No. 64 p. 9; Memorandum of Reply to the Second Chamber on the Bill on the borders of the Netherlands Territorial Sea, Session 1983–1984 Nr. 17654.

13. “Declarations made upon signature of the Convention classified” published in “Law of the Sea Bulletin” No. 1, by the Office of the Special Representative of the Secretary General for the Law of the Sea, September 1983. Those made on 10 December 1982, the day on which the Convention was opened for signature are also printed p. 320–330 of the “Tractatenblad” No. 83, 1983. Those made after September 1983 are found in part in the “Law of the Sea Bulletin” Nr. 3 and the rest will be included in its subsequent issues. (A/39/647).

14. The Single Negotiating Text went through eight stages, served as a basis for the negotiations and was explicitly of an informal character, until 28 August 1981, when the text became the “Draft Convention”. Sources for the 1975 and 1976 texts: Off. Rcrds Vol. IV, p. 137 et seq. and Vol. V, p. 125 et seq.

15. See speech of Spanish delegate on 8 December 1982 (A/CONF.62/PV. 190 p. 41 et seq.)

16. UN Treaty Series 555 p. 262.

17. Report by the Delegation of the Kingdom of the Netherlands to the Third UN Conference on the Law of the Sea, IXth Session, Vol. I p. 18 and 37. Subsequent notes to this series of widely distributed mimigraphed Reports will be as follows: “RDKN IX–I p. 18 and 37”; 75 AJIL (1981) “ The Third United Nations Conference on the Law of the Sea: The Ninth Session (1980) Oxman, Bernard H.p.235Google Scholar.

18. A/CONF.62/L.117 dated 15 April 1982.

19. By the President of the Conference on 26 April 1982, A/CONF. 62/SR. 176 p. 2.

20. FA–Publication Nr. 56 p. 23.

21. Multilateral Treaties Deposited with the Secretary General, Status as at 31 December 1981, p. 589.

22. Article 309.

23. FA–Publication Nr. 56 p. 36.

24. See Memorandum of Reply and Extavour, sources in note 12, ante.

25. RDKN IV–I p. 29.

26. RDKN VIII–II p. 20.

27. UN Treaty Series 450 p. 11.

28. RDKN IX–I p. 18; text of proposal in RDKN IX–II C.2/Informal Meeting/ 50 dated 14 March 1980.

29. See note 8, ante.

30. See notes 6 and 7, ante.

31. RDKN II–I p. 19.

32. Doc A/CONF.62/C.2/L 11 Off. Reds III p. 189–190.

33. For example the Convention of Montreux on 20 July 1936, concerning the Dardanelles and the Bosphorus, mentioned by J.P.A. Francois in his Grondlijnen van het Volkenrecht, 3 rd edn. (1967) Wfflink, Tjeenk Ed. p. 477–478Google Scholar.

34. Judgment in the Corfu Channel Case by the International Court of Justice, Reports 1949, p. 28. The Soviet point of view with regard to the Strait of Gibraltar can be found in Oxman, Bernard H. “The Third United Nations Conference on the Law of the Sea: the 1977 New York Session” 72 AJIL (1978) p. 63 n 27Google Scholar.

35. Malaisia, Morocco, Oman and Yemen, Off. Reds Voll III p. 192–195 doc. A/CONF. 62/C2/L. 16.

36. RDKN IV-I p. 36; Moore (see note 4) pp. 100–101. The text of these informal proposals was not printed in the official records, but Moore informs us that the texts were published in “Die Dokumente der Dritten Seerechtsconferenz der Vereinigten Nationen” by DrPlatzöder, R. (Stiftung Wissenschaft und Politik, München) on p. 522 and 530.Google Scholar (Of this publication there is another version published by Oceana Publications (USA), of which the system and page numbering is different. In the last mentioned version the proposals are printed in Vol. IV p. 282 and 277.)

37. Oxman, Bernard H., “The Third United Nations Conference on the Law of the Sea: The 1977 New York Session”, 72 AJIL (1978) p. 64Google Scholar.

38. Oxman, Bernard H., “The Third United Nations Conference on the Law of the Sea, VIth Session”, 73 AJIL (1979) p. 6Google Scholar.

39. Oxman, Bernard H., “The Third United Nations Conference on the Law of the Sea: IXth Session” 75 AJIL (1981) p. 242Google Scholar.

40. A/CONF.62/L.123 dated 13 April 1982 in RDKN XI–II.

41. A/CONF.62/L.109 dated 13 April 1982 in RDKN XI–II, of which a part was withdrawn (ACONF.62/SR 175 p. 2); a vote was taken on the part not withdrawn.

42. A/CONF.62/SR 176 p. 3–6.

43. The Aland Islands were demilitarized by the Treaty of Paris of 1856. This Treaty was renewed at Geneva on 21 October 1921.

44. The Sound Treaty was published, inter alia, in the “Staatsblad” [Statute Book] of the Kingdom of the Netherlands of 1857, 89. The way in which the quoted clause is formulated is such that it also covers warships, see Alexandersson, G. in The Baltic Straits (Nijhoff 1982) p. 73.Google Scholar Probably the Swedish and Danish Proclamations of 3 June 1966 (Nr. 366) and 7 February 1976 respectively (Alexandersson, , op.cit. p. 109 and 107Google Scholar)are connected with the Treaty. See Article 4 of the Swedish Proclamation and Section 3 subsection 2 of the Danish regulation. Subsection 4 and Section 6 subsection 4, however, are contrary to the provision of the Sound Treaty as interpreted here.

45. RDKN II–I annex 8.

46. Article 58 juncto Article 87: the proposal was drafted in a small group undei the chairmanship of Ambassador Castañeda (Mexico). See also doc. 14800 sent to the Second Chamber of the States-General Session 1977–1978, Chapter V, p. 21: “…de vrijheid van scheepvaart inclusief die van oorlogsschepen…”

47. UN Treaty Series 450, p. 11 et. seq. Art. 2.

48. RDKN VI–I p. 27.

49. RDKN VII–I p. 21–22; RDKN VII–III doc. C2/Informal Meeting/7, dated 26 April 1978.

50. Source given in note 9, p. 409–410 (M. McGuire) and p. 417–418 (T. Clingam).

51. RDKN IV–I p. 39, see also P. Merciai, p. 105.

52. Off. Reds. III p. 220 Doc. A/CONF. 62/C2/.42/Rev.1

53. Source given in note 9, p. 401, 419 (Admiral Fraser, India).

54. Platzöder, source given in note 9, p. 556–577.

55. UN Treaty Series 499 p. 311.

56. Treves, T., “Military Installating Structures and Devices on the Seabed” 74 AJIL (1980) p. 841Google Scholar.

57. UN Treaty Series 450, p. 82.

58. UN Treaty Series 559, p. 285.

59. Pace Merciai, p. 100.

60. FA–Publication No. 93, p. 51; see also Merciai pp. 103–104.

61. RDKN II–I, p. 20; Proposals of the Eastern Block: Off. Reds II p. 189–190. See also thorough discussion in 74 AJIL (1980) p. 815–819 op. cit.; note 56 in Treves.

62. Booth op.cit. (see note 9 ante) p. 340: “It is in the military sphere where some of the uncertainties are likely to last longest; this is because the issues involved are so important to some States, while the general problem is sensitive to all. It is in an area in which the prospects for disagreement are strong and the prospects for legal clarity are weak. The way in which the ICNT has circumvented the issue is significant. It has adopted the tactic of silence within which are hidden a number of rights for navies…” (ICNT = Informal Composite Negatiating Text: the third version of the text which formed the basis for the negotiations during the Third Law of the Sea Conference. The ICNT dates from 1977).

63. P. 96, for source see note 5 ante.

64. RDKN V–I p. 64–65.

65. 75 AJIL (1981) p. 238 (in one of the Articles by Oxman) see note 37 ante.

66. Idem pp. 238–239; RDKN IX–I p. 29.

67. Statement of the American Delegate during the Final Session at Montego Bay (Jamaica) A/CONF.62/PV. 192 pp. 3–5. See also Statement by the President of the United States dated 10 March 1983, published in the “Law of the Sea Bulletin” Nr. 1 (see note 10) p. 80.

68. Statement by the British delegate during the Final Session A/CONF.PV 189, p. 82.

69. Proclamation by the President and Statement by the President both published in the “Law of the Sea Bulletin” Nr. 1, p. 78–82 (see note 10).

70. Idem p. 83–88.

71. A/CONF. 62/PV 193 p. 22 et. seq.

72. Lee, Luke T., “The Law of the Sea Convention and Third States”, 77 AJIL (1983) pp. 561–6Google Scholar.